It’s been an exciting first week of 2024. Last week, Maine became the second state to knock Trump off the ballot. In this week’s podcast, Renato and I discussed the legal and procedural underpinnings of the Maine decision in our podcast, as well as how the Supreme Court might handle this issue. One thing we both agreed on is that the common refrain many reputable commentators and legal scholars have made in recent weeks — that the Supreme Court should not disqualify Trump because it would divide the country, not be accepted by Trump supporters, and further delegitimize the Court, and that it is “better to beat him at the ballot box” — makes no sense at all whatsoever. That kind of reasoning is basically letting the terrorists win.
I mean, where does that argument end? I suppose we should drop the prosecutions against Trump too, since any conviction that might result from them will not be accepted by Trump supporters, either. (Note that if Trump is acquitted, they will scream it from the rooftops as complete vindication.) Heck, let’s just hand the entire country over to MAGA and let them do whatever they want, since if they don’t get their way they’ll have a temper tantrum (read: threaten and injure people and public servants). It’s the political equivalent of giving a bratty toddler the iPad after they’ve set fire to the living room so that you don’t have to deal with another meltdown.
I was pleased to see that David French FINALLY made a coherent argument for the New York Times (article linked below) why the Supreme Court needs to apply the law without fear nor favor. He writes:
This is where we are and have now been for years: The Trump movement commits threats, violence and lies. And then it tries to escape accountability for those acts through more threats, more violence and more lies. At the heart of the “but the consequences” argument against disqualification is a confession that if we hold Trump accountable for his fomenting violence on Jan. 6, he might foment additional violence now.
Enough. It’s time to apply the plain language of the Constitution to Trump’s actions and remove him from the ballot — without fear of the consequences. Republics are not maintained by cowardice.
Exactly.
Well, yesterday the Supreme Court decided to take the case and hear arguments on an expedited schedule. Ideally, the Court will actually engage with the heart of Section 3 of the Fourteenth Amendment, and determine whether the actions of January 6 amounted to an “insurrection” and whether Trump “engaged” in it. But what are some ways for the Court to avoid answering this question? Here are a few off ramps:
The Court could decide that the provision does not apply to the President. That will be a hard case to make, given the smoking gun exchange among the framers of the Fourteenth Amendment, which is laid out in this ABC News piece
The Court could decide that the provision is not “self-executing,” and needs some other procedure (like a conviction) before it can be enforced. This one seems flimsy, since the other sections of the Fourteenth Amendment are self-executing, the provision has historically been applied without any other requisite procedure, requiring a criminal conviction would be an incredibly high bar and not consistent with the plain text (not to mention that there is really only one statute that directly addresses insurrection). This would also be a hard one to swallow since Colorado (and Maine) reached their decisions following adversarial processes (meaning that Trump’s side got a chance to present evidence and be heard), not to mention that he was formally impeached by the House and his actions later documented by a bipartisan committee after extensive hearings in which he was invited to participate.
The Court could decide that eligibility under the Fourteenth Amendment can’t be decided by states, and that it has to be determined by Congress. I guess at this point the Court would just be making up their own version of the Constitution, since the “time, place, and manner” of elections is left to the states, and also be reading requirements into the Fourteenth Amendment that aren’t there, but that has never really stopped them before. (This would also directly contradict Justice Gorsuch’s own approach to eligibility — which he reiterated was a quintessential state decision — when he was an appellate judge.)
The Court could decide that Colorado did not correctly apply its own laws in determining Trump’s eligibility under the Constitution. This would be along the lines of Bush v. Gore, where it interpreted the Florida Supreme Court’s own application of its state election laws under the Constitution. The difference is that in 2000, only Florida mattered. If the Court goes in this direction, it provides no guidance for the dozens of other states that are facing requests to disqualify Trump, all under different state laws and procedures. So either the Court would then have to hear appeals from every state that disqualifies Trump, or he ends up on some ballots but not others and the election is a disaster. This would be a really dumb outcome.
The Court could decide this is a “political question,” and that it does not have a role in making a call on this question at all, and that somehow this needs to be worked out by the political branches — meaning the Executive branch and Congress. I’ve heard a few people suggest this avenue, but I don’t even understand what that would mean: We’d just be in national chaos and courts wouldn’t be able to have a say??? Honestly I don’t think even this Court is lame enough to take this route. What would be the point of hearing the case? (Also I think there are a few justices who can’t resist the opportunity to play God with the democratic process.)
So that’s just a quick outline of some lines of questioning that I expect the justices to tease out during oral argument. Trump has made some other arguments but not surprisingly, a lot of them are dumb — like his claim that Section 3 only applies to “holding” office, not “running” for office (? so presumably he should be allowed to run and win, and then he’d have to be disqualified from being inaugurated…yeah, I think we know how that will turn out). Renato and I will certainly be discussing all of the above as the briefs from both sides come in over the coming weeks.
Noteworthy clips from this week:
Articles worth reading:
This New York Times op-ed by David French, making the argument that the Supreme Court — and the country — cannot be held hostage by the threat of violence following an unpopular decision, and needs to apply the letter of the law. Finally someone is making sense.
Upcoming events:
Freedom Academy Book Club, Wednesday, January 17, 12 p.m.: A discussion with by Scott Shapiro, author of Fancy Bear Goes Phishing: The Dark History of the Information Age, in Five Extraordinary Hacks. Zoom link will be sent to paid subscribers at 9 a.m. The talk will be recorded and posted the following day.
NEW! Wine & Fries Happy Hour with George Conway, Time/Date TBA (sometime in February). This is going to be really fun, especially on the heels of Trump’s Supreme Court argument. George is one of my favorite legal analysts and is also one of the funniest people I know. Zoom link will be sent to founding members three hours before the event.
NEW! Guest Speaker Barb McQuade, Thursday, March 28, Time TBA. Speaking of my favorite legal analysts, I’m thrilled to have Barb be a guest speaker for my class, Preserving Democracy in the (Dis)Information Age. Barb is about to release her book, Attack from Within: How Disinformation is Sabotaging America, and I’m excited to get her perspective on where we are as we head into the 2024 election. Zoom link will be sent to paid subscribers three hours before the discussion, and will be recorded and posted for paid subscribers the following day.
I hope your 2024 is off to a great start — let the games begin!
100% agree: start labelling MAGA as "domestic terrorist extremists" & defendant demagogue "terrorist leader", pass it along to all the media. The dumbing-down, normalizing of the mainstream coverage is maddening. Still reporting the "campaign" as some kind of unprecedented poll, rather than a terrorist movement, now openly neo-nazi in threat & rhetoric, the consequences of "election" a choice between dystopian hell & 4 more years of insurrection. Recently replied to a congressperson who repeated the normalized line: "we should let the voters choose", challenging: "it appears that the twice-impeached loser will have to actually shoot someone on 5th ave before the establishment takes the threat seriously." Also, the issue of him being able to even pass a national security clearance of any kind is sadly underreported. "Enemy of the State" by all historic & legal measures.
This aligns nicely with what I have been saying in comments. SCOTUS will be looking for an easy way out but will not find one that doesn't have serious ramifications for the court and the law going forward. Looking at each of these "outs", they will find none really do the trick and it will force them to seriously consider knocking Trump off the ballot. Of course, even if they do decide that it is ok to rule against Trump, they still have a problem to solve. I suppose they can let Colorado's decision stand and, basically, let each state decide for themselves whether to allow Trump on the ballot. Perhaps they will view this as the least bad path.
I'd be interested in hearing from Asha and Renato on how SCOTUS might rule if the supremes can't tolerate any of the "outs" listed in this article.